977 F.

2d 574

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Wallace MOORE, Defendant-Appellant.
No. 91-5715.

United States Court of Appeals,

Fourth Circuit.
Submitted: October 8, 1992
Decided: October 22, 1992

Appeal from the United States District Court for the District of Maryland,
at Baltimore.
Mark L. Gitomer, Cardin & Gitomer, P.A., Baltimore, Maryland, for
Appellant.
Richard D. Bennett, United States Attorney, Geoffrey R. Garinther,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
D.Md.
AFFIRMED.
Before SPROUSE, WILKINSON, and WILLIAMS, Circuit Judges.
PER CURIAM:

Wallace Moore pled guilty to bank fraud, 18 U.S.C.A.s 1344 (West Supp.
1992). He appeals the sentence imposed on the ground that his offense level
was improperly increased pursuant to guideline section 4B1.3.* We affirm.

Under section 4B1.3, the offense level of a defendant whose offense was
committed as part of a pattern of criminal conduct engaged in as a livelihood
should be no less than thirteen, but may be reduced for acceptance of
responsibility. A pattern of criminal conduct means planned criminal acts
which occurred over a substantial period of time. U.S.S.G. 4B1.3, comment.
(n.1). For the sentencing court to find that the defendant engaged in criminal
conduct as a livelihood, there must be evidence showing that in any twelvemonth period he derived income from criminal conduct which exceeded 2000
times the existing minimum wage ($6700 during the year preceding Moore's
conviction on this offense); the totality of the circumstances must also show
that criminal conduct was the defendant's primary occupation during the
twelve-month period. U.S.S.G. 4B1.3, comment. (n.2).

In his plea agreement, Moore stipulated that he presented false identification

which enabled him to withdraw $17,500 from a bank account not his own, and
that this was part of a scheme he engaged in with two co-defendants in which it
was foreseeable to him that the total loss to the bank would be $70,000120,000. Before his sentencing, Moore told the probation officer that he had
been a heroin addict since the 1950's and had used it continuously since then,
except for periods of confinement, that his habit often cost him $80-100 a day,
and that he obtained the money by forging checks or other criminal activity.
Because of his drug habit, Moore had only brief periods of legitimate
employment. On this information, the probation officer recommended that
Moore's adjusted offense level be increased from ten to eleven under guideline
section 4B1.3.

The government informed the district court at the sentencing hearing that it had
no information about how the conspirators divided the money obtained through
the scheme and could not show that Moore had obtained over $6700 through
criminal activity in the preceding twelve-month period. However, the district
court found that an increase under section 4B1.3 was justified because Moore
admitted to maintaining an expensive drug habit over many years without
having any legitimate means of support. Whether he engaged in criminal
conduct to support himself, making it his primary occupation during any given
year, and made more than 2000 times the going minimum wage during that
year, was a factual question. Because the information supplied by Moore
himself supported the district court's finding, we cannot say that it was clearly
erroneous.

We therefore affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately presented in
the materials before the Court and argument would not aid the decisional

process.
AFFIRMED

United States Sentencing Commission, Guidelines Manual (Nov. 1991)